CRZ15 v Minister for Immigration

[2017] FCCA 558

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRZ15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 558

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – refusal of protection (class XA) visa – Applicants seek impermissible merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

First Applicant: CRZ15

Second Applicant: CSA15

Third Applicant: CSB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2781 of 2015

Judgment of: Judge Hartnett

Hearing date: 9 February 2017

Delivered at: Melbourne

Delivered on: 9 February 2017

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Koya

Solicitors for the Second Respondent: DLA Piper

ORDERS

1. The application is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $7,206. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2781 of 2015

CRZ15

First Applicant

CSA15

Second Applicant

CSB15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application under the Migration Act 1958 (Cth) (‘the Act’) seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 19 November 2015. The Tribunal, by that decision, affirmed a decision of a delegate of the First Respondent not to grant to the Applicants protection (class XA) visas.

2. The grounds of the application are set out below:-

   “1. The Administrative Appeals Tribunal made a jurisdictional error in denying the Applicant’s application for a Protection visa in failing to consider all the facts and the law related to the Applicant’s application particularly: 

   Particulars:

   (a) the Administrative Appeals Tribunal did not consider that the Applicant is either a person in respect of whom Australia has protection obligations under the refugee criterion, or on “complementary protection ground, or a member of the same family unit as such a person and that person holds a protection visa of the same class.

   (b) The delegate refused his visa on the basis that the visa applicant did not face a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm if they return to India. 

   ● The Tribunal does not accept that the applicant parents were not happy because his wife’s family could not afford a suitable dowry.  The applicant’s evidence was contradictory,  Tribunal to conclude that the claims regarding a suitable dowry are not credible. 

   ● The Tribunal does not accept that the applicant’s mother wants to kill the secondary applicant and their child and that the applicant had her faces slapped - lack of credibility. 

   ● The Tribunal has given consideration to the fact that the primary applicant and secondary applicant confirmed that they were safe in their in-laws village and home, but could not return for financial reasons. These statements detract from the credibility of the applicants’ claims that they face a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm if they return to India, a lower standard of living or the social stigma of living with in-laws meets the threshold of serious harm or significant harm.”

3. The First Respondent filed a response on 4 January 2016.  The First Respondent sought dismissal of the application on the basis that no arguable case for the relief sought was raised.  In particular, in that response document the First Respondent set out the following:-

   “(2) The application contains one ground with multiple particulars.  The ground goes no higher than to seek impermissible merits review.  Insofar as the ground alleges that the AAT failed to consider whether the applicants met the criterion under section 36(2) of the Migration Act 1958 (Cth), this ground cannot be sustained.  On the face of the decision record the AAT plainly considered these factors, and the ground should be understood to disagree with the finding of the AAT.”

4. That ground of opposition was apposite, but did not deter the Applicants from proceeding with their application. 

Migration History

1. The Applicants are citizens of India.  The First Applicant (‘the Applicant’) arrived in Australia on 25 October 2007 as the holder of a Student (class TU) (subclass 573) (higher education sector) visa valid until 26 December 2009.  On 22 December 2009, he lodged an application for a Student (class TU) (subclass 572) (vocational education and training sector) visa (‘the student visa’) and was granted an associated bridging visa.  On 12 December 2011, he was granted the student visa which was valid until 10 May 2012.  On 9 May 2012, the Applicant lodged an application for an extension of the student visa, this was granted on 25 July 2012, and was valid until 10 February 2014.  On 11 February 2014, the Applicant became an unlawful non-citizen.

2. On 23 February 2013, the Applicant’s wife (Second Applicant) arrived in Australia as a dependent on her husband’s student visa.  She failed to enrol and her last recorded study date was 11 March 2013.  On 22 June 2014, the First and Second Applicants’ daughter was born and she was granted a bridging visa A on 31 July 2014.  On 30 July 2014, the Applicant’s wife lodged an application for a student (class TU) (subclass 572) (vocational education and training sector) visa which was refused on 19 September 2014.  On 20 October 2014, the Applicants lodged the current application for a protection (class XA) visa (‘the protection visa’) and the family were granted associated bridging visas. 

3. The Applicants’ claims were set out in a written statement attached to their application for the protection visa.  That written statement is dated 17 October 2014 and set out in the evidence as contained in the court book which is filed in these proceedings.  The claims are:-

   a)the Applicant claimed his parents were not happy with his relationship with the Second Applicant as her family was unable to provide a sufficient dowry for their marriage.  Despite this, the Applicants married on 19 December 2010; 

   b)the Applicant came to know that his parents demanded a huge dowry from his in-laws and threatened that they would break his marriage if this was not fulfilled.  The Applicant also claimed his parents were forcing the Second-Named Applicant to bring more money from her parents; 

   c)the Applicant returned to India to resolve the issue, but his mother slapped the Second Applicant and threatened to kill her and make it appear to be a kitchen fire accident.  The Applicant claimed his mother tried to throw the Second Applicant out of the house and falsely accused her of robbery; 

   d)the Second Applicant came to Australia in 2013 and gave birth to a girl which the Applicant’s mother was unhappy about as she wanted a boy.  The Applicant’s mother has threatened the Second Applicant that she will hire professional killers to kill her if she comes back to India;  and

   e)the Applicant does not want to take legal action against his parents as they are rich and could easily manipulate the case by bribing the police.

4. By letter dated 30 October 2014, the Department of Immigration and Border Protection (‘the Department’) wrote to the Applicants acknowledging their application. The letter attached information which stated that if the Applicants wished to have an opportunity to discuss their claims by interview, to contact the Department within seven days of receiving the acknowledgment letter.  The Department received no response to that acknowledgement letter and the Applicants did not attend an interview before the Department. 

5. A delegate of the Minister refused the protection visa application on 4 May 2015.  The delegate considered the Applicants’ claims not to be credible.  The Applicants subsequently applied to the AAT for review of the delegate’s decision on 22 May 2015. 

6. On 27 October 2015, the Applicants appeared before the Tribunal to give evidence.  That evidence given by the Applicants is as set out in the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) in considerable detail commencing at paragraph 29 of the Decision Record. 

7. The Tribunal put its various credibility concerns to the Applicants for their comment.  The Applicants were provided with an opportunity to respond. 

8. The Tribunal did not accept that the Applicant’s parents were not happy because his wife’s parents could not afford a suitable dowry, as this was inconsistent with his parents’ initial approval of the marriage and with the three lakhs, dowry provided to and accepted.  The Tribunal also found that the Applicant’s evidence was contradictory in relation to the dowry provided. 

9. The Tribunal did not accept that the Applicant’s mother wanted to kill the Second Applicant and their child, nor that the Second Applicant had her face slapped.  The Tribunal found those accounts to lack credibility.  The Tribunal stated the Applicants were unable to provide a consistent or detailed account in relation to that claim. 

10. The Tribunal did not accept that the Second Applicant was tortured or that she had hot water thrown at her and told that she was not allowed to travel abroad.  The Tribunal noted that such behaviour was not consistent with the Second Applicant being allowed to return back to her parents’ home to reside with them and the freedom of movement afforded to the Second Applicant as she moved between her parents’ home and her in-laws’ home as described by both Applicants. 

11. The Tribunal gave consideration to the fact that the Applicant and Second Applicant confirmed that they were safe in their in-laws’ village and home, but could not return for financial reasons, standard of living and because of the social stigma of living with in-laws.  The Tribunal found those statements detracted from the credibility of the Applicants’ claims that they faced a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm if they return to India, because the Tribunal did not accept that financial reasons, a lower standard of living or the social stigma of living with in-laws met the threshold of serious harm or significant harm.

12. The Tribunal found the Applicants did not face a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm if they return to India. The Tribunal concluded the Applicants did not satisfy the criterion set out in s.36(2)(a) of the Act. The Tribunal considered the alternative criterion as set out in s.36(2)(aa) of the Act and was not satisfied that the Applicants were people in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

Consideration

1. The First Respondent correctly submits that the Applicants’ ground seeks to cavil with the merits of the Tribunal decision and fail to raise an arguable case of jurisdictional error on the part of the Tribunal.  

2. The Tribunal complied with its obligations under Division 4 of Part 7 of the Act. The Tribunal considered each of the claims made by the Applicants and the material put before the Tribunal by the Applicants. The Tribunal made findings open to it on the basis of the evidence before it and noted in respect of many of the claims made by the Applicants that they lacked credibility.

3. It is not for this Court to engage in merits review, as is said often in the Court.  The application will be dismissed and an order for costs shall follow in the sum set out in the Federal Circuit Court Rules 2001 (Cth) Schedule 1, Part 3 division 1.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 23 March 2017